Maharashtra Municipal Corporation Act, 1949 – s.493 r/w Cl. 5 of Appendix (IV) – Services rendered by primary teachers (Respondent nos.5 to 79) while in the service of the Zilla Parishad (ZP), if to be counted towards their seniority after the transfer and merger of their services into the Pune Municipal Corporation (PMC) – On appeal by the primary teachers recruited directly by the PMC whose seniority is adversely affected, held: Service rendered by Respondent Nos. 5 to 79 in the ZP has to be treated as service rendered in the PMC and therefore has to be counted towards the determination of their seniority as well – No infirmity in the view taken by the High Court in this regard – Also, service rendered by Respondent Nos. 5 to 79 in the ZP is consistent and unbroken and it remains in existence even after their absorption into the PMC as a result of the statutory protection embodied under Clause (5) of Appendix (IV) r/w s.493 – No merit in appeal – Service Law – Constitution of India – Art. 243Q.
Maharashtra Municipal Corporation Act, 1949 – s.3(3)(b) – Purpose and scope of – Discussed.
Dismissing the appeal, the Court
HELD: 1.1 On a cursory look of the legislative scheme behind the MMC Act, it is evident that Section 3 falls in Chapter 1, which is captioned as ‘PRIMARY’. Since, the MMC Act was enacted in 1949, it has been suitably amended from time to time, especially after the insertion of Part IX-A ‘Municipalities’ in our Constitution with effect from 01.06.1993. Article 243Q(1) mandates that, in every State, the following would be constituted:
(a) A nagar panchayat, for a transitional area, namely, an area in transition from rural to urban area; (b) a municipal council for a smaller urban area; and (c) a municipal corporation for a larger urban area. The obligation was placed on every State under subArticle of Article 243Q to define ‘transitional area’, ‘a smaller urban area’ or ‘a larger urban area’. It is in discharge of this Constitutional obligation that the State of Maharashtra also amended the MMC Act thereby providing under Section 3(1) that a ‘larger urban area’ shall be specified by way of a Notification to be issued under Article 243Q(2) of the Constitution, and such an area shall be deemed to be a duly constituted Municipal Corporation. Sub-Section (3) further provides that the State Government, in consultation with the Corporation, may include or exclude an area from within the limits of the Municipal Corporation. It is in this context that Clause (b) of sub-section
(3) provides that when an area is included within the limits of the ‘larger urban area’, any appointments, notifications, notices, taxes, orders, schemes, licenses, permissions, rules, by-laws issued, imposed or granted, under the MMC Act or any other law which is for the time being in force in the larger urban area shall, notwithstanding anything contained in any other law, apply to and be in force in the additional area, from the date that area in question is included in the city. To simplify, Clause (b) merely states that whatever appointments, notifications, notices, rules or by-laws etc. are already in force in the existing ‘larger urban area’ will mutatis mutandis come into force in the “additional area” which is included by issuing a notification under Clause (a) of Section 3(3) of the MMC Act. The purpose of Clause (b) is to ensure that any statutory or administrative decision which has already been enforced by a Municipal Corporation in its existing larger urban area shall stay in force and will become applicable automatically in the newly added area also. The expression ‘appointments’ has to be understood in this context only. The scope of Clause (b) as a provision is meant to facilitate the inclusion of newly added additional areas and to ensure that such areas do not remain in a vacuum for want of statutory or administrative decisions following the cessation of its status as part of the ZP. Clause (b) of Section (3)(3) is not concerned with the protection of conditions of service of the employees of the ZP who are absorbed into a Municipal Corporation. When the ORS.
Legislature never intended to regulate terms and conditions of the employees who are merged in a Municipal Corporation due to expansion of ‘larger urban area’, no inference in relation thereto can be drawn from the plain wording of Section 3(3)(b) of the MMC Act. The reliance placed by the Appellants on the said provision is, thus, completely misplaced and is liable to be rejected. [Paras 15-17][992-D-H; 993-A-F]
1.2 The provisions of Appendix (IV) shall apply to the constitution of the Corporation and other matters specified therein. Clause (1) of Appendix (IV) pertains to ‘construction of reference in other enactments’ whereas Clause 2 provides that all rights of the municipality or any other local authority shall, on the date in question, vest in the Corporation constituted for the said area. Clauses (3) and (4) deal with ‘sums due’ and ‘debts, obligations, contracts and pending proceedings’, respectively. Clause 5 deals with ‘continuation of appointments’, taxes, budget estimates, assessments etc.’ and its Sub-Clause (C) specifically says that all officers and servants under the employment of a municipality or local authority immediately before the appointed day shall be officers and servants employed by the Corporation under this Act and shall, subject to other provisions made in accordance with the provisions of this Act, receive salaries and allowances and be subject to the conditions of service which were operative on such date. The first proviso provides, crucially, that service rendered by such officers and servants before the appointment date shall be deemed to be service rendered in the service of the Corporation itself. There is no dispute regarding the fact that Clause 5(c), including its first proviso, occupies this field of law till date. The provision explicitly deals with protection of conditions of service of the officers and servants who were earlier employed in a local authority like a ZP, and who have been subsequently absorbed into a Municipal Corporation. It expressly protects their service rendered by them in the local authority before the appointed day and further provides that it shall be considered as service rendered in the Municipal Corporation itself. Given the existence of this unambiguous provision, the only logical conclusion is that the service rendered by Respondent Nos. 5 to 79 in the ZP has to be treated as service rendered in the PMC. Such service, therefore, has to be counted towards the determination of their seniority as well. There is no infirmity in the view taken by the High Court in this regard. Additionally, Clause (5) of Appendix IV starts with the expression ‘continuation’ of appointments. The word ‘continuation’ connotes ‘without interruption’. It is an unbroken and consistent state of affairs or operation of something. In other words, the service rendered by Respondent Nos. 5 to 79 in the ZP is consistent and unbroken and it remains in existence even after their absorption into the PMC as a result of the statutory protection embodied under Clause (5) of Appendix (IV) read with Section 493 of the MMC Act. [Paras 18, 20-22][993-H; 994-A-B, H; 995-A, F-H; 996-A-C]
Union of India v. Shiv Dayal Soin & Sons (P) Ltd. (2003)
4 SCC 695 : [2003] 2 SCR 371 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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